PURCHASE ORDER TERMS & CONDITIONS

These Terms and Conditions are incorporated into and made a part of any purchase order, service order, equipment order or other document referencing these Terms and Conditions (each an “Order”) between Novus Foods, LLC, on behalf of itself or one or more of its subsidiaries or affiliates including Tribe Mediterranean Foods, Inc., Simply Fresh, LLC and Italian Rose Garlic Products LLC (each as applicable, “Purchaser”) and the vendor or supplier named on an Order (“Supplier”).

1. APPLICATION OF TERMS AND CONDITIONS

Supplier’s performance or other acceptance of any request to supply goods, services, equipment or products (collectively, the “Products”) may only be made on the terms and conditions set forth in these Terms and Conditions together with any other specifications or quality documents provided by Purchaser to Supplier prior to the date of an Order (collectively, “Agreement”). An Order does not constitute acceptance of any Supplier offer or proposal. These Terms and Conditions are exclusive, and any terms and conditions in Supplier’s quotation, acknowledgement, invoice or any other writing pertaining to any Order, irrespective of its wording or of when received by Purchaser, which are in conflict or inconsistent with or add to the terms and conditions of these Terms and Conditions, are rejected and will not be acceptable or become a part of this Agreement without Purchaser’s express written consent. Acceptance of Products delivered pursuant to an Order shall not constitute acceptance of such conflicting, inconsistent or additional terms, nor operate to modify or change the full effect of these Terms and Conditions.

These Terms and Conditions may be revised from time to time by Purchaser. If revised, Purchaser will post the revised terms and conditions on the Purchaser’s applicable website and the revised version will be effective as of the date stated at the top of such terms and conditions. Supplier is directed to read the terms and conditions referenced in each subsequently issued Order that Supplier receives because by accepting such Order after a revised version of the terms and conditions has been posted and becomes effective, Supplier will be deemed to have accepted the revised version.

2. ACCEPTANCE OF ORDERS

Orders shall be deemed accepted by Supplier upon its failure to provide a rejection notice within two business days of the placement of the Order.

3. PRICE AND PAYMENT TERMS; INVOICING

Supplier will sell and provide Products to Purchaser at the price stated in the Order (“Price”). Unless Purchaser agrees otherwise in writing in an Order, the purchase price(s) for Products includes storage, handling, packaging, freight, insurance, transportation, taxes and all other expenses, costs and charges of Supplier to produce and deliver the Products. If the Price listed in the Order is incorrect, Supplier must reject the Order by providing Purchaser with notice of rejection within two business days. Price shall include all amounts to be charged to Purchaser unless additional costs or charges are set forth on the face of the Order. Unless otherwise agreed by Purchaser and Supplier in in an accepted Order or otherwise in writing (including by email), and subject to any prompt payment discounts, payment terms shall be 2% 15 days, 1% 30 days, net 60 days after Purchaser’s receipt of a correct invoice, and there shall be no charges to Purchaser for warehousing, storage, packing, or boxing, unless otherwise agreed upon at the time of purchase and reflected on the Order. Purchase and Seller shall adjust any discrepancies between an Order and Supplier’s invoice in good faith and in accordance with the provisions of these Terms and Conditions and the Order. Purchaser may withhold payment to the extent of any reasonable dispute regarding the amount due under any Order. Damage to any material not packed in a manner that ensures proper protection (including during the course of shipping and handling) will be charged to Supplier.

Supplier invoices must be itemized to include goods by item number, freight charges (if applicable), sales tax (if applicable) and any other agreed charges. Purchaser will only pay invoices that are itemized. Purchaser will pay only properly assessed sales taxes, which are shown on the face of the invoice. Separate invoices must be rendered for each shipment, in duplicate. Each invoice may cover no more than one Order, and the Purchaser’s Order number must be shown on each invoice. Invoices must be sent to Purchaser’s Accounts Payable department.

4. DELIVERY

Time and quantities are of the essence. Purchaser’s production schedules are based upon the agreement that Product will be delivered to Purchaser by the date(s) specified on the face of the Order, or, if later, Supplier’s published lead times (“Delivery Date”). If deliveries are not made by the Delivery Date, Purchaser may (a) request that Supplier ship the Products by means that will expedite delivery (cost of alternative means of shipment shall be borne by Supplier), or (b) cancel the Order in whole or in part and purchase comparable Products elsewhere, and/or (c) claim compensation for late delivery. If Purchaser cancels all or any part of the Order because of failure to meet a Delivery Date, Supplier shall be liable to Purchaser for any costs, damages or losses sustained by Purchaser, including cover costs. If any actual or potential circumstance is threatening to delay timely delivery, Supplier shall provide immediate written notice containing the soonest possible delivery date. Each shipping unit containing Product(s) must contain a packing list showing shipper’s name, contents of package, order number, and complete item number and description of Purchaser, if applicable.

5. SHIPPING

(a) Supplier agrees: (i) to properly pack, mark, and ship Products in accordance with the requirements of Purchaser and the applicable carriers; (ii) to route the shipments in accordance with Purchaser Purchaser’s instructions, if any; (iii) to label or tag each package according to Purchaser instructions; (iv) to provide papers with each shipment showing the Order number, Purchaser item 2 number, Supplier’s item number where applicable, quantity of pieces in the shipment, number of cartons or containers in the shipment, Supplier’s name, Purchaser assigned “supplier number,” and the bill of lading number; and (v) to promptly forward the original bill of lading or other shipment receipt for each shipment in accordance with Purchaser instructions and carrier requirements. (b) If requested by Purchaser, Supplier will promptly provide Purchaser the following information in the form requested: (i) a list of each of the components and materials making up the Products; (ii) the amount of each component and material in the Products, (iii) information concerning any changes in or additions to such components or materials, and (iiii) lot codes and expiration dates. (c) Before and at the time the Products are shipped, Supplier will give Purchaser sufficient warning, in writing, of any hazardous material that is an ingredient or part of the Products (including, without limitation, Material Safety Data Sheets and appropriate labels on all Products, containers, and packing), together with any special handling instructions that are needed to advise carriers, Purchaser, and their respective employees or other representatives about measures to be taken to prevent bodily injury or property damage while handling, transporting, processing, using or disposing of the Products, containers and packing. Supplier agrees to comply with all applicable foreign, federal, state, and local laws, ordinances, regulations, rules, orders, and standards pertaining to the Products, including, without limitation, product and warning labels. (d) Under no circumstances will shipping documents attached to or contained in the shipment display pricing information or any of Purchaser’s proprietary information.

6. TAXES

Supplier agrees to assume exclusive liability under all laws that impose taxes or other exaction on the manufacture or sale of the goods to be furnished hereunder or any component part thereof, or on any process or labor involved therein, or on any services to be rendered by Supplier, and to pay any and all such taxes except for sales, use, excise, ad valorem, value added, or consumption taxes imposed by any governmental authority for the purchase of the goods Supplier supplies, which Supplier is required by law to collect from Purchaser. Prices shall not include any taxes for which Purchaser furnishes to Supplier a valid exemption certificate.

7. FOOD PRODUCTS

The provisions of this Section 7 apply to all Orders for Products intended for human consumption or edible ingredients or raw or finished materials (“Food Products”) to be supplied by Supplier:

(a) In addition to any warranties or similar requirements set forth in the Agreement, Supplier shall abide by all laws related to the production, distribution and/or sale consumable goods, including but not limited to the Food Safety Modernization Act and shall maintain written documentation of such compliance.

(b) Supplier agrees to maintain a comprehensive food safety and quality assurance program; examples include, but are not limited to: hazard assessments and control plans (e.g. HACCP or HACCP-like plans), sanitation standard operating procedures (SSOP), Good Manufacturing Practices (GMPs), periodic facility audits (utilizing internal or external resources), pest and allergen control programs, equipment calibration schedules, etc.

(c) In addition to maintaining a food safety and quality assurance program, Purchaser may require that Supplier be certified to a food safety standard that is recognized by the Global Food Safety Initiative (GFSI). If so required, and upon request by Purchaser, Supplier shall provide copies of the GFSI recognized audit results and/or GFSI certification. If Supplier is required by Purchaser to be GSI certified but is not GFSI certified as of the Effective Date, Supplier, by entering into this Agreement, agrees that it shall work cooperatively with Purchaser towards achieving such certification within a reasonable timeframe.

(d) Supplier agrees that all packaging and labeling shall be accurate, complete, and comply with all federal regulations. Except where specifically exempt, all food supplied to Purchaser shall have an ingredient statement on the label or be accompanied by an ingredient statement in the form of a sign, placard, flipchart, sticker, or other acceptable form of labeling. Ingredient statements must include major food allergens present or potentially present in the product. Upon request, Supplier agrees to provide documentation demonstrating the accuracy of labeling of products provided to, distributed to, and/or ordered by Purchaser. Where applicable, labels for products subject to Perishable Agricultural Commodities Act must include the country or countries of origin of the product and/or ingredients.

8. WARRANTIES AND REPRESENTATIONS

(a) Supplier warrants and represents that the Products to be supplied pursuant to each Order are (i) fit and sufficient for the purpose intended; (ii) merchantable, of good quality, and free from defects, whether patent or latent, in material and workmanship; (iii) in conformity with the specifications, drawings,samples or other descriptions, if any,specified or furnished;(iv) new (not refurbished);(v) consistent with any implied warranties mandated by applicable Laws (as such term is defined below); (vi) produced using good manufacturing practices; and (vii) suitable for human consumption if food or food ingredient products.

(b) Supplier warrants and represents that Supplier has absolute and good title to the Products supplied in that the Products are now free of, and at the time of delivery shall be free of, all liens, security interests or encumbrances of any kind against the Products.

(c) Supplier warrants and represents that any Products intended for human consumption or edible raw or finished materials (“Food Products”), as of the date of shipment or delivery, and whether made in connection with an Order or delivered to Purchaser at any time hereafter, are not (i) adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and all of its amendments, 3 including, but not limited to, the Food Additive Amendment and the Food Safety Modernization Act (“FSMA”) and any other Laws applicable to food; (ii) materials which may not, under the provisions of Sections 404 and 505 of the Food Drug and Cosmetic Act or any other applicable Law, be introduced into interstate or inter-jurisdictional commerce; (iii) adulterated or misbranded within the meaning of any Laws (then in effect) of any jurisdiction (including federal, state, provincial, territorial or local) to which such material is shipped; or (iv) a threat to health or human safety (collectively, the “Continuing Pure Food Warranties”). Supplier further warrants that any packaging or container used to package, ship or otherwise contain Food Products shall be appropriate for use with products intended for human consumption and shall not cause Food Products to violate the Continuing Pure Food Warranties.

(d) Supplier warrants and represents that all aspects of its performance under this Agreement, including all phases of the manufacturing process of the Products and the use of Products purchased, do not constitute a violation of any federal, state or local law, or any rule, ordinance or regulation thereof, or order, decree, guideline or statement having the force of law (collectively, “Laws”), including without limitation, the Federal Food Drug and Cosmetic Act, Occupational Safety and Health Act, the Foreign Corrupt Practices Act, and FSMA along with any recordkeeping obligations imposed thereunder. Supplier’s representation and warranty shall further include, without limitation, all anti-corruption, anti-bribery, data privacy, data protection and fair competition Laws that apply in any jurisdiction in which Supplier performs services or offers Products for sale hereunder.

(e) All services provided by Supplier hereunder will be (i) satisfactorily performed to Purchaser’s specifications, drawings, samples, and any other description furnished to, furnished by or adopted by Purchaser and (ii) provided by qualified personnel reasonably skilled and trained in the performance of the services and in a workmanlike and professional manner in accordance with general industry standards. Supplier will re-execute, at its own cost and expense, any defective or unsatisfactory work or equipment that appears during progress or on completion of the work and will remedy and replace, at Supplier’s own cost and expense, any defects. All work will be at Supplier’s
risk until it is accepted by Purchaser in writing. Supplier, its employees and agents will (and the Supplier agrees to ensure that any approved sub-contractors will) at all times when on Purchaser’s site comply with Purchaser’s safety regulations (a copy of which will be provided to the Supplier on request).

(f) All warranties made in these Terms and Conditions shall run to the benefit of Purchaser and the successors, assigns and customers of Purchaser, and shall survive any inspection, delivery, acceptance or payment by Purchaser, or such successors, assigns and customers, of the Products.

9. INSPECTION

At all times upon reasonable notice, Purchaser and its auditors shall have access to: (i) all information, documentation and reports related to the sale of Products to Supplier hereunder; and (ii) Supplier’s facilities used to manufacture, pack or hold Products or ingredients, including review of processes, controls and facilities related to the manufacture and storage of any Product or the Product’s
ingredients.

10. ACCEPTANCE AND REJECTION

Purchaser’s acknowledgement of receipt of the Products will not constitute acceptance of such Products or acknowledgement of the quantity of Product shipped. Any acceptance is not valid if the Product contains hidden defects, latent defects,
or any non-compliance with this Agreement not known to Purchaser. Purchaser may at any time reject or revoke acceptance of Product
that does not comply with the terms of this Agreement. Upon rejection or revocation, Purchaser has the right, at its option, to require Supplier to (a) repair or replace, at Supplier’s expense, including the cost of transportation; (b) refund the price of any or all rejected
Products; (c) a combination of the foregoing (a) and (b); or (d) itself replace, repair or correct any rejected Product at Supplier’s full expense, including the cost of transportation.

11.RECALL

If a Product becomes subject to a voluntary or involuntary recall, recovery or market withdrawal (“Recall”), Supplier shall:

(a) promptly give Purchaser advance notice that includes the full details of the Recall and any actions that it is legally obligated to take; and (b) assume responsibility and costs for implementing and complying with such Recall according to applicable Laws, including without limitation, costs arising from the return and/or replacement of such Products. To the extent a product offered for sale by Purchaser is affected by a recall, Purchaser shall have sole authority to determine the timing, scope and extent of any Recall, and Supplier shall cooperate and comply with all of Purchaser’s policies and instructions regarding suchRecall.

12. INDEMNITY; INSURANCE

(a) Supplier shall defend, indemnify and hold Purchaser, its affiliated companies, and their respective shareholders, officers, directors, employees, agents, successors, and assigns harmless from and against any and all claims, suits, actions, liabilities, losses, costs, reasonable attorneys’ fees, expenses, judgments or damages, whether ordinary, special, penalty, punitive or consequential, arising directly or indirectly from or in connection with (i) the negligence, gross negligence or willful misconduct of Supplier or its employees, consultants or subcontractors; (ii) the Products supplied hereunder; (iii) a breach of any of Supplier’s covenants, warranties or any other term and condition of this Agreement; (iv) Supplier’s negligent, unauthorized or wrongful acts or omissions with regard to the transportation, use, handling, disposal, processing or installation of hazardous materials; (v) a claim that any Product furnished hereunder infringes upon or misappropriates any patent, copyright, trademark, trade secret or other intellectual property interest of another; (vi) actual or alleged adulteration or misbranding of Product; (vii) a claim of any lien, security interest or other encumbrance made by a third party in
4 elation to the Products; or (vii) a violation of Law. Losses incurred by Purchaser for unplanned manufacturing line “down time” will be
calculated using Purchaser’s average conversion cost per total number of pounds that Purchaser would have produced on the impacted manufacturing line(s) but for Supplier failure. Purchaser’s conversion costs are the production costs that Purchaser pays per pound of finished product produced.

(b) Without limiting Purchaser’s rights and remedies hereunder, if Purchaser believes that any Product supplied hereunder is likely to be determined to be an infringement or misappropriation of a patent, copyright, trademark, trade secret, or other proprietary right, Purchaser may require Supplier to (a) procure for Purchaser a license to continue using the Product at no cost or delay to Supplier, (b) modify the Product so as to make it non-infringing without impairing its performance or use, (c) replace the Product with product that is substantially equal but non-infringing, or (d) remove the Product from Purchaser’s plant, in which event Supplier shall refund to Purchaser the purchase
price paid by Purchaser for the Product and reimburse Purchaser for any other damages associated with its inability to use the Product(s). The remedies provided in this Section are not exclusive and shall not preclude any other remedy available to Purchaser at Law or in equity.

(c) Supplier shall carry and maintain insurance coverage satisfactory to Purchaser to cover its obligations in this Agreement. Such insurance shall comply with the minimum limits set forth on Exhibit A. All such policies except Workers Compensation shall name Purchaser and all of its subsidiaries and affiliated companies, as an additional insured on a primary and non-contributory basis. A waiver of subrogation in favor of Purchaser is required on all policies. Supplier shall submit to Purchaser certificates of insurance showing proof of such coverage.

13. INTELLECTUAL PROPERTY

Each party shall remain the owner of intellectual property rights that are: (1) owned by the party prior to its relationship with the other party; and/or (2) created independently without reference to the intellectual property or confidential information of the other party and not pursuant to the direction or request of the other party (collectively, “Background IP”). Excluding Background IP, Purchaser shall solely own as works made for hire all: deliverables, designs, results, technical information, drawings, formulas, codes or other information, materials or intellectual property created by Supplier in response to Purchaser’s request or pursuant to Purchaser’s direction or specifications (“Works Made for Hire”). Works Made for Hire shall include, without limitation, modifications, improvements or adjustments to specifications or processes that are made specifically for Purchaser as well as modifications to the intellectual property or confidential information of Purchaser. Supplier agrees to take all actions necessary to assign, transfer or otherwise confer upon Purchaser its entire interest in and to the Works Made for Hire. Supplier understands that Purchaser trade names, trademarks, service, marks, copyrights, designs and other intellectual property owned by Purchaser are valuable assets of Purchaser. Supplier will not sell or otherwise distribute products containing trademarks, trade names, copyrights, designs or other intellectual property of Purchaser to anyone other than Purchaser or one of its subsidiaries without Purchaser’s prior written approval.

14. DELIVERY TERMS

Unless otherwise provided on the face of the Order, prices and delivery are “F.O.B. Destination.” Unless otherwise provided on the face of the Order, title, risk of loss, damage or delay shall remain with Supplier until Purchaser’s receipt and acceptance of the Products. Supplier shall bear the same risks with respect to any Products rejected by Purchaser or as to which Purchaser has revoked its acceptance, from the time of such rejection or revocation.

15. ASSIGNMENT

Supplier may not assign, delegate or subcontract (collectively “assign” or “Assignment”) any of its obligations under an Order and may not assign any right to receive payment without Purchaser’s written consent. Any Assignment without such prior written consent shall be null and void. Supplier shall remain liable for the performance of all obligations after an Assignment is made.

16. CANCELLATION

Purchaser may, at any time, terminate its Orders, in whole or in part, without cause, upon written notice to Supplier. Upon any such termination Supplier shall, to the extent specified by Purchaser, stop all work on the Order, and cause its suppliers and subcontractors to stop work. Charges for any such termination of an Order shall be limited to actual nonrecoverable costs incurred by Supplier that Supplier can demonstrate were properly incurred prior to the date of termination. In no event will Purchaser reimburse Supplier for Products in excess of those required to meet Purchaser’s Order. In no event shall such reimbursement include anticipated profits or revenue or other economic loss for undelivered Product or unperformed services.

17. FORCE MAJEURE

In the event either party, through no fault of its own, is unable to perform hereunder due to circumstances beyond its reasonable control (“Force Majeure Event”), such nonperformance will be excused, provided that if any such event continues for more than 10 days, Purchaser may, at its option, cancel any unfilled Order and/or this Agreement and all its related obligations. Each party will promptly notify the other in writing of any inability to perform and the cause of such nonperformance. A Force Majeure Event shall include events that cannot be mitigated with advanced planning. Force Majeure Events shall not include raw material shortages, equipment failures, transportation interruptions or delays, strikes, work or labor shortages, or any other circumstances that could be avoided with proper advance mitigation and contingency planning

18. LIENS

Supplier will keep the premises and work free and clear of all mechanic’s liens. If the Products or services are of such a nature that Supplier would be entitled to file a lien against Purchaser’s real or personal property, Supplier shall submit a Release and Waiver of Lien and all applicable subcontractor’s and materialman’s Release and Waivers of Lien in a form acceptable to Purchaser prior to final

19. CONFIDENTIALITY

Supplier shall keep in confidence and shall not, without Purchaser’s prior written consent, originate any publicity or disclose to any third party information relating to: the existence of the relationship with Purchaser; information disclosed by Purchaser verbally or in writing, or obtained by Supplier through observation of Purchaser’s facilities, purchasing practices or other interactions with Purchaser; the nature of the services performed and Products delivered under this Agreement; and any designs, specifications or other information supplied by, or on behalf of, Purchaser (“Confidential Information”). Confidential Information shall not include information that: (i) was already in Supplier’s possession prior to Purchaser’s disclosure and maintained without any obligation of confidentiality; (ii) is independently developed by individuals who had no knowledge of or access to the Confidential Information; or (iii) becomes publicly available without breach of this Agreement by Supplier. To the extent a disclosure of Confidential Information is required by Law, Supplier shall provide Purchaser prompt written notice prior to any disclosure. Upon the termination of Supplier’s relationship with Purchaser, or at any time upon Purchaser’s request, Supplier shall destroy or return all Confidential Information in its possession.

20. LIMITATIONS ON LIABILITY

There shall be no limitation on Supplier’s liability to Purchaser or on any right afforded to Purchaser hereunder unless such limitation is reflected in a writing signed by both parties. For the avoidance of doubt, there shall be no “cap” or upward limitation on the amount of damages that Purchaser may recover or pursue. Purchaser’s ability to recover shall not be limited by the purchase price or the amount of fees paid to Supplier. Supplier warranties shall have no ability to limit Supplier’s liability hereunder. Purchaser shall maintain the right to demand the repair, replacement or reimbursement of damages for a breach hereof, and nothing in this or any subsequent document shall limit these rights, unless such limitation is reflected in a writing signed by both parties.

21. MISCELLANEOUS

(a) This Agreement shall be deemed to have been placed and accepted in and shall be construed in accordance with the laws of the State of Ohio, without reference to any conflict of laws rules. The laws of the State of Ohio will govern this Agreement. Supplier consents and submits to the exclusive jurisdiction of the state or federal courts in the State of Ohio with respect to any action arising hereunder.

(b) This Agreement and the attachments and documents incorporated herein or referred to on the face of an Order constitute the entire contract and understanding between the parties hereto and supersede all prior representations, understandings, course of dealing and contracts relating to the subject matter hereof, with the exception of Negotiated Contracts; however, Supplier shall also comply with Purchaser’s Supplier Code of Conduct found at https://novusfoods.com/code of conduct. “Negotiated Contracts” shall mean contractual arrangements that reflect the formal signature of both parties. Negotiated Contracts do not include email exchanges. If there is any conflict between this Agreement and the terms of a Negotiated Contract, the terms of the Negotiated Contractshall govern. If there is any conflict between this Agreement and the terms of sales, acknowledgement of other confirmatory document prepared by Supplier (“Supplier Terms”), the terms of this Agreement shall govern. Purchaser rejects any and all Supplier Terms. No modification, amendment, expansion or waiver of any term or condition hereof shall be effective unless set forth in writing signed by Purchaser and Supplier.

(c) Purchaser’s failure to insist, in one or more instances, upon the performance of any term(s) in this Agreement shall not be construed as a waiver or relinquishment of Purchaser’s rights to such performance or the future performance of such term(s), and Supplier’s obligation with respect thereto shall continue in full force and effect.

(d) Purchaser shall have, in addition to the rights and remedies set forth herein, all remedies provided at Law or in equity. Purchaser’s remedies afforded in this Agreement are not exclusive. The exercise, or failure to exercise, any right or remedy shall not preclude or waive any right or remedy available to Purchaser. The invalidity, in whole or in part, of any provision of these Terms and Conditions shall not affect the validity or enforceability of any other of its provisions.

End of Purchase Order Terms and Conditions

EXHIBIT A
Novus Foods, LLC
Vendor Insurance Requirements

All Insurance Certificates must show “Novus Foods, LLC., all subsidiaries and affiliated companies” are additional insureds on a primary and non-contributory basis under general liability, automobile liability, and umbrella liability as required by written contract. Waiver of subrogation applies under general liability, automobile liability, umbrella liability, and workers compensation where permitted by law.

Certificate Holder should read: Novus Foods, LLC, and all Subsidiaries and Affiliated Companies, 1600 Gressel Drive